Special Report: Waiting on death row

It's been 59 years since a Stark County man was executed. And it's unknown when the next one will occur. Five Stark County cases are waiting on death row. Two date to the 1980s. A maze of legal challenges delay such cases. But a statewide task force is examining how fairly the death penalty is administered in Ohio. A final report — which some members hope will lead to substantial changes — is expected next year.

No one sentenced to the death penalty in Stark County has been executed for nearly six decades.

The last was Russell Muskus on July 9, 1954, for killing a man in Canton.

Since then, death penalty laws have changed. So has the method, from electrocution to lethal injection. But it's unknown when the next Stark County case will conclude.

Five Stark County-convicted prisoners are on death row, including two who have been there since the mid-1980s, with no set execution date.

Criminal cases now must run their course through multiple legal layers — the trial court, state supreme court, federal court. Files contain thousands of pages.

There's no absolute formula to determine when the next inmate from Stark County will be executed. The schedule of executions for 2014 and 2015 — a total of 11 — does not include a local case, according to the website of the Ohio Department of Rehabilitation and Correction. A single execution is scheduled thus far for 2016.

Ohio's most recent execution took significantly less time from conviction to death when compared to Stark's oldest cases. In late September, Harry Mitts, Jr., 61, was executed for fatally shooting a neighbor and a police officer in a 1994 case in Cuyahoga County.

Chris Davey, a spokesman for the state supreme court, said he cannot discuss specific capital cases. "But in general terms there are a variety of factors that go into determining execution dates, which are set by the Ohio Supreme Court in consultation with the Department of Rehabilitation and Correction," he wrote in an email.

Attorneys familiar with the system said varying time tables are driven by legal challenges, some of which are considered automatic.

The time it takes an execution to be carried out in Ohio — and the procedural twists and turns that cause delays — are among the many issues now under review by a statewide task force charged with examining the fairness of the death penalty in the state.

Other issues include what cases are selected for the death penalty, disparities statewide in capital cases and an expected recommendation to not sentence severely mentally ill defendants to death.

The group is expected to meet in the spring to review a draft report. A final report, which will have no legislative or authoritative teeth, is expected next year.

But there's a concern that some potential recommendations — such as establishing a review panel to decide or suggest when the death penalty is applied — would lead to more appeals and more delays.

'CASES ARE ALL DIFFERENT'

Longevity doesn't dictate when someone is executed.

For example, it's possible that James Mammone of Canton — convicted in 2010 of a triple murder — could be executed before David Sneed or John Gillard, both convicted of separate local crimes in the 1980s, said Mark Caldwell, an assistant Stark County prosecutor in the appellate section.

Page 2 of 5 - The Mammone case is an example of how a standard appeal takes years. Mammone's direct appeal is scheduled to be argued on Dec. 11 before the Ohio Supreme Court. An opinion won't be rendered until sometime in 2014, Caldwell projected.

"Cases are all different," he said. "There's no cookie-cutter approach to how long they take ... it just depends on a lot of those legal factors."

"The (procedural process) is complicated and convoluted and is designed for very careful review by multiple courts, and that's ... going to incur time delays," Caldwell said.

In the 1990s, an effort — backed by a state constitutional amendment — was intended to streamline capital cases, he said. "I'm not sure it's really been successful," he said.

As of Friday, there were 138 inmates on death row. Ohio halted executions between April 1963 and early 1999.

TASK FORCE

The Joint Task Force to Review the Administration of Ohio's Death Penalty — a joint effort of the Ohio Supreme Court and the Ohio State Bar Association — met in Columbus earlier this month.

Periodic meetings started in 2011 aimed at reviewing the 2007 American Bar Association report titled, "Evaluating Fairness and Accuracy in State Death Penalty Systems: The Ohio Death Penalty Assessment Report," and offer an analysis of its findings.

The 22-member task force includes prosecutors, judges, law professors and state representatives across the state.

The task force was told it could not review whether the death penalty should be abolished in Ohio. And it does not have independent policy-setting authority.

Douglas Berman, an Ohio State University law professor who serves on the task force, said he's hopeful for tangible results.

"I certainly think there is an effort to ensure the recommendations and overall report is going to make ... a contribution to Ohio's current system, and how it might be improved for the better," he said. Also, Berman believes the recommendations have the potential to "advance the public policy conversation in a healthy way."

The group includes subcommittees. Consensus depends on the issue.

"I am pleased that's it's going on," Berman said of the task force. "At the end, the hardest issues (have been discussed), but I'm not sure we'll do more than show they are the hardest issues."

Final recommendations may include the establishment of an oversight group — based in the attorney general's office — to review what cases should include the death penalty.

The concept is controversial, Berman said, noting the decision on whether to pursue the death penalty rests solely with a county prosecutor's office.

"It has a range of opinions," he said of the task force members.

If such a review panel is created, Berman said, options include consulting with prosecutors or overruling them in some cases.

Page 3 of 5 - "I don't think one can dispute there are differences in approaches and differences in (how county prosecutors) consider and use the death penalty," he said.

Timothy Young, director of the Ohio public defender's office and a task force member, said that urban counties have more capital cases than rural counties. However, the counterpoint may be that urban counties have more homicides and crimes that warrant the death penalty, and that each crime may have its own unique set of conditions.

Young also cited racial and geographical disparities.

"I think you always have concern that people see the report as the finished (product) ... rather than the starting line," he said. "And it should be the starting line."

Rashu Jeffries, 44, of Canton, said he's not frustrated by the delay. And he's not waiting for the man who killed his sister to be executed. In 2007, Edward L. Lang III was convicted of murdering Jeffries' sister, Marnell M. Cheeks, and Jaron N. Burdette during a robbery.

Not everyone in the family — as well of friends of Marnell — shares his opinion on the death penalty, Jeffries admitted.

"I respect other people's opinion and ways to grieve, but to me it's not going to do me any good to have that pain inflicted on someone else's family," he said. "It's almost vindictive, and I don't want to be vindictive about it — I want to grow and heal."

DIFFERENT VIEWPOINTS

The death penalty is not sought arbitrarily, said Chryssa Hartnett, an assistant Stark County prosecutor.

Since sentencing laws changed in the mid-1990s, death penalty convictions have become more rare, Hartnett said.

But death penalty cases are not selectively prosecuted, said Dennis Barr, an assistant Stark County prosecutor. "If they abolish it, will I be upset? No. ... But if there's a death penalty case, I'm going to pursue the death penalty."

A death penalty specification can be applied for certain crimes. Factors include the number of people killed and other crimes that occurred in the course of a homicide.

"If it's there it's there, if it's not it's not," Barr said.

"It'd be easy not to (seek the death penalty)," he added. "Being easy is not how we prosecute."

The Mammone case — in which he murdered his two young children and his former mother-in-law — is one of the three death row cases that Barr's tracking.

"I fully intend, if I'm able and allowed, to attend each and every execution because each of them deserve it, and yes, as a prosecutor (the delays are) frustrating to us, and we understand the law and we accept it, but it's especially frustrating in a case like (Mammone) because he's the poster child for why we should have the death penalty."

Page 4 of 5 - Tammi Johnson, the Stark County public defender, has other views.

"I am against the death penalty," she said. "I don't believe there's a need for the death penalty, but setting that aside I think it is applied very selectively" statewide.

Some smaller counties may avoid death penalty cases due to the expenses involved, Johnson said. She also cited what she says are clear racial disparities.

There's a valid reason for delays, she said.

It's "basically because of the protection given by the constitution," Johnson said. "Things change, and one of the things that changed (over the decades) is understanding the complexity of a capital case and protecting the system — it's not just protecting the defendant; it's protecting the system."

Young, of the state public defender's office, said the death penalty must be exercised with caution because sometimes prosecutors get it wrong. He cited national statistics.

"You better make sure you got it right every time."

STARK COUNTY DEATH ROW CASES

JOHN GILLARD: 1985. Convicted of fatally shooting two people and trying to kill a third at a house party. The case had been ready for the prosecutor's office to file a motion to set an execution date. However, by agreement between the prosecutor and Gillard, additional DNA testing was being conducted. There is nothing pending in federal court at this time.

DAVID SNEED: 1986. Convicted of fatally shooting a man in the head during a robbery, then ordering his accomplice to also shoot the man in the head. The case potentially could be ready for a motion by the prosecutor's office to set an execution date. There is nothing pending in federal court, but Sneed is part of the federal litigation claiming lethal injection is unconstitutional.

MICHAEL D. SCOTT: 2000. Convicted of fatally shooting two people in separate incidents, including a man who took Scott and Scott's girlfriend on a test-drive in his car, thinking they wanted to buy it. The case is in the 6th Circuit Court of Appeals awaiting an oral argument set by the court. Scott is part of the federal litigation claiming lethal injection is unconstitutional.

EDWARD L. LANG III: 2007. Convicted of shooting a drug dealer and the man's girlfriend to death during a robbery. In federal court, he's filed a petition for a writ of habeas corpus and the state filed an answer earlier this month. Lang has until Dec. 31 to file a reply, unless he gets an extension. He is also part of federal litigation claiming lethal injection is unconstitutional.

JAMES MAMMONE: 2010. Convicted of stabbing his two children to death and killing his former mother-in-law. Oral arguments in the direct appeal are scheduled for Dec. 11 before the Ohio Supreme Court.